04/7/2024
The digital inheritance is the assortment of digital assets which have been left by a deceased person, and includes both assets with economic value, such as cryptocurrencies, as well as assets of purely emotional value, such as photos, videos, files in the cloud and profiles on social media, also known as digital memory.
In 2022, the National Department of Justice published the statement no. 687, which establishes that “Digital assets can be part of the assets in the legitimate succession of the deceased person, and its disposal in the form of a testament or codicil is allowed”. However, the legal gap on the subject still leads to a feeling of insecurity.
Currently pending in the House of Representatives, Bill nº 1.689/2021 aims to include in the Brazilian Civil Code’s definition of inheritance rights such as copyright, personal data and social media posts and interactions, cloud files, email accounts and websites.
The text also includes relevant clauses in the Copyright Act, establishing rules for internet application providers to manage profiles, pages, accounts, posts and personal data of the deceased, in which the heir shall be entitled to access the deceased’s personal page by presenting the death certificate.
The heirs’ right to the deceased’s digital assets with sentimental value would only not apply in the exceptional case of a requirement stated by the deceased in their will, declaring their wish for confidentiality or deletion of their personal data, in accordance with the deceased’s right to privacy and intimacy.
In the ruling handed down on April 26, 2024, in Appeal No. 1017379-58.2022.8.26.0068, the 3rd Chamber of Private Law of the São Paulo Court of Justice considered the affective value and recognized that digital assets are part of the inheritance of the deceased person, and therefore belong to the assets and are liable to be inherited by the heirs, even if not included in the will.
In this regard, the São Paulo Court of Appeals has been authorizing heirs’ access to the deceased person’s digital archive and ordering the unblocking and the transfer of digital memory to the heirs, in those cases in which the deceased person has not made a will to deny their access to his/her information.
It is also important to emphasize that the São Paulo Court of Justice understands that, in compliance with the principle of the autonomy of the will, the final will provisions of the deceased in the opposite order must be respected, those that require the total removal of personal data, or even the ones that establish the appointment of a specific “heir contact” , as occurs in the Terms of Service of Facebook to which the account owner agrees.
In these cases, the Court has ruled in favor of the individual’s choices about the destination of the account made on each social media platforms, or through any other legitimate tool.
For this reason, it is increasingly important to ensure that the disposal of digital memory assets is properly planned, including through a will, especially in the case of an objection to the assets inheriting to legitimate heirs.
Co-authored by: Ulisses Simões e Isadora Lima V. B. Arruda
